Decision : Closed after initial enquiries
Decision date : 25 Oct 2019
The Ombudsman's final decision:
Summary: The Ombudsman should not investigate this complaint about issuing polling cards for a local referendum. The matter complained of was the responsibility of the Counting Officer, not the Council, and the Ombudsman cannot investigate the Counting Officer.
- Mr B complains that he and others did not receive polling cards for a local referendum. He reports this put him to some trouble before voting and he states other people who did not receive polling cards were unaware of the referendum so missed the opportunity to vote.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
- We can only investigate complaints about alleged or apparent maladministration or service failure in the Council’s exercise of its Council’s administrative functions or how it provided (or failed to provide) a service that was the Council’s function to provide. (Local Government Act 1974, section 26(1), as amended)
How I considered this complaint
- I considered the information Mr B provided and the relevant law. I gave Mr B the opportunity to comment on my draft decision.
What I found
- A local referendum about a neighbourhood plan took place in Mr B’s area. Mr B’s complaint against the Council is that he and other people did not receive polling cards. Mr B does not believe the Council has investigated this properly.
- For the reasons in paragraph 4, I must first consider whether issuing polling cards was the Council’s responsibility. Many people believe the conduct of elections and referendums is the responsibility of local councils. However, this is not wholly correct. For a referendum such as this one, it is the responsibility of the ‘Counting Officer’ to ensure the referendum takes place in line with the law. (Neighbourhood Planning (Referendums) Regulations 2012, Regulation 9(3))
- The Counting Officer does not act on the Council’s behalf. Instead, he or she acts in a personal capacity to carry out legal responsibilities (similar to the role of the Returning Officer in an election.) This means anything that is the Counting Officer’s responsibility is not the Council’s responsibility. The Ombudsman has no power to investigate matters that are the Counting Officer’s responsibility.
- It is the Counting Officer’s responsibility to send a polling card to each voter and proxy. (Neighbourhood Planning (Referendums) Regulations 2012, Schedule 3, part 4.17(1)) As this was the Counting Officer’s responsibility, not the Council’s, we cannot investigate it.
- The Ombudsman cannot investigate this complaint because the Ombudsman does not have the legal power to investigate the Counting Officer’s actions.
Investigator's decision on behalf of the Ombudsman